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Appropriateness of First Tier Tribunals Set Aside notification
I made an application for permission to apply to the Upper Tribunal on an error of law following the receipt of a Statement of Reasons but have never come across the situation I now find myself in and would welcome some thoughts.
The decision has been Set Aside by the First Tier tribunal on the Error of Law that had been put forward on the Daily Living aspects of this case and that is fine. However the District Tribunal Judge who has done this has then “reviewed” the papers and essentially highlighted evidence that he thought cast doubt on the mobility award that was in place although this was not any part of the application that was made. My colleagues and I feel that the Decision Notice and Directions, which will now become part of the papers, will now put undue pressure on any subsequent tribunal to look at disallowing the mobility award. Surely it is down to the new tribunal to form their own view of the evidence available.
In the past when we have received Upper Tribunal Set Aside decisions back with Directions for a new hearing we have never had a situation where adverse evidence has been specifically highlighted to the detriment of a client.
Does anybody have any suggestions of a way forward with this situation? Many thanks.
Dunno, maybe find the evidence to support the claim?
Dunno, maybe find the evidence to support the claim?
The appeal papers already have the supporting evidence I believe necessary to justify the mobility award. The question I was asking is what to do when a District Judge tries imposing his views on a cases evidence rather than allowing a new tribunal consider it independently at a rehearing .... something not done in my experience by Judges who Set Aside at the Upper Tribunal level.
Dunno, maybe find the evidence to support the claim?
The appeal papers already have the supporting evidence I believe necessary to justify the mobility award. The question I was asking is what to do when a District Judge tries imposing his views on a cases evidence rather than allowing a new tribunal consider it independently at a rehearing .... something not done in my experience by Judges who Set Aside at the Upper Tribunal level.
The issue is does the supporting evidence justify the mobility award unequivocally, unquestionably and with no room for doubt?
You may believe the evidence is good but with respect the tribunal makes the decision.
I therefore (at least attempt to) brief and prepare for the worst case scenario.
You could approach the Regional judge if you think that’s helpful?
It will be for the new tribunal to consider the award of MC and if they think it is in question must warn the claimant at the start of the hearing that they will consider it and provide him/her the chance to withdaw the appeal. Failure to do so would of itself be an error in law.
I think all you can do at this stage is to respond indicating why the evidence does indeed show that the mobility component is justified. It’s not as though you will be able to have the remarks stricken from the record.
Insofar as the judge is simply indicating that the mobility component is in issue, I don’t think anything improper has happened. A judge reviewing the papers for any reason is entitled to give directions on what points are or appear to be in issue. That’s a case management power. Necessarily that may mean pointing out evidence which is unfavourable to a party and directly or implicitly inviting that party to address it. I doubt that can be seen as usurping the tribunal proper’s ability to decide the facts of the case itself. It can often be actively helpful because it stops these issues coming up for the first time at the hearing.
There would only be an error - at least so far as I can see - if either the judge has (or is seen to have) given a firm view of the facts AND the tribunal hearing the case sees itself as bound by that view or bound to give evidential weight to it, or if the remarks are so unjustifiably prejudicial as to cast a shadow of unfairness over the whole process. That seems a very unlikely possibility but if you were going to argue that, it would be after a decision is made.
I don’t think it will be necessary for the new tribunal to give your client a fresh warning at the hearing proper that mobility is in issue. The directions appear to have done that already. The purpose of the warning is to give an unsuspecting appellant the chance to make their case about an aspect of the award they might previously have thought was safe - and the directions you have received certainly give you that chance.
Good luck with it.
I don’t think it will be necessary for the new tribunal to give your client a fresh warning at the hearing proper that mobility is in issue. The directions appear to have done that already. The purpose of the warning is to give an unsuspecting appellant the chance to make their case about an aspect of the award they might previously have thought was safe - and the directions you have received certainly give you that chance.
Good luck with it.
Agreed (agree with the rest of it too, but it’s this bit that is important) - I think it follows from this that;
a) if the new tribunal does wish to examine entitlement to the mobility component, you’re not going to be able to argue that this is a surprise (because not put in issue by the DWP) - any request for an adjournment to properly prepare to meet the mobility case would (rightly) fall on deaf ears.
b) now is the time to advise the client of their right to withdraw the appeal - I would be surprised if the next tribunal issues a further warning or permits withdrawal (though it would have the right to). This is not to say the client should withdraw or that the case is weak - but the client needs to be properly advised about this now.